4 Mo. 338 | Mo. | 1836
Lead Opinion
Opinion delivered by
The question presented for our consideration and de-cisión is, were these persons competent to give evidence in the cause? The counsel for the plaintiffs in error have cited the case of Trotter v. Winchester et al, decided by this court,(1 vol. M. R. 413) to prove that a devisee cannot be a witness. That case does indeed, prove the abstract proposition. But the counsel for the defendant in error, place the case of a devisee, on the ground of interest alone; and we are satisfied this is the ground on which the question ought to be placed. As a general rule, the case of Trotter v. Winchester, was rightly decided; the facts are imperfect, and we suppose a case of interest must have been made out. To prove that a devisee may be a witness in some cases and in a case like the present, the defendant’s counsel cite and rely on the case of Windham v. Chetwynd—1 Burr R. 414, this case puts the question on the true footing; that is, that a devisee, may or may not be a witness, according as his interest may be balanced, or that his interest may be against the party for whom he is brought to testify. Then, on the ground of interest, one rule is that where the interest is equal, the witness is competent; and another is, that where his interest is against the par- . ty who offers him, he may be sworn — all that class of devisees whose interest depends alone on establishing the will, are clearly incompetent; as when the testator devises $100 to A. a stranger, and A. attests the will, he cannot be sworn, for by his swearing, he establishes his right to the $100.
In the case at bar, all the persons rejected as witnesses, were legatees, as far as the supposed will is known, they,are also heirs at law, and distributees, in case no will is, found to exist. The executor offered to prove that their interest under the supposed will, was and would
In regard to the question, whether the circuit court erred or not, in reversing that part of the judgment of the county court, which finds that John Mullanphy died intestate; we give no opinion, as the cause had better on wholej be sent back for furthei trial; the judgment of circuit court, is affirmed, the cause remanded to that
Concurrence Opinion
I concur with the court, except on the-point of competency of the devisees, offered as witnesses in the county court, to establish the will. In all such cases, it is my opinion, that the devisee of a specific legacy is incompetent; the question of interest, being a complex one, which the court have not the means of investigating, and settling as upon an issue made up in due form. •